Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

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THE SUPREME COURT OF THE STATE OF ALASKA 

In the Disciplinary Matter Involving a 

DISTRICT COURT JUDGE. 

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) Supreme Court No. S-16032 

ACJC File No. 2014-007 

O P I N I O N 

No. 7156 – March 10, 2017 

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Original Application from the Alaska Commission on 

Judicial Conduct. 

Appearances: Timothy A. McKeever and Stacey C. Stone, 

Holmes Weddle & Barcott, P.C., Anchorage, for Petitioner. 

Marla N. Greenstein, Alaska Commission on Judicial 

Conduct, Anchorage, and Jeffrey M. Feldman, Summit Law 

Group PLLC, Seattle, Washington, for Respondent. 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 

BOLGER, Justice. 

I. INTRODUCTION 

Following a disciplinary sanction, a judge was not recommended for 

retention by the Alaska Judicial Council. Although the judge chose not to campaign, an 

independent group supported his retention and campaigned on his behalf. After the 

election the Alaska Commission on Judicial Conduct filed a disciplinary complaint 

against the judge and later imposed an informal private admonishment on the judge 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

because he did not publicly address allegedly misleading statements made by the 

independent group. Because the statements clearly originated with the independent 

group rather than the judge, and the judge had no knowledge of one statement, the judge 

had no duty to publicly address any of the statements. Accordingly, we reverse the 

Commission’sadmonishment and dismisstheCommission’scomplaintagainstthejudge. 

II. FACTS AND PROCEEDINGS 

The petitioner is a state district court judge.1 In a previous disciplinary 

matter, the Alaska Commission on Judicial Conduct filed a recommendation for 

discipline against the judge. We adopted the Commission’s disciplinary 

recommendation. Based on the same misconduct, the Alaska Judicial Council 

recommended that the judge not be retained in a subsequent election. The judge sought 

advice from counsel and chose not to mount his own retention campaign. 

A close friend of the judge’s wife learned about the Council’s 

recommendation and decided to fund an independent campaign to support the judge’s 

retention. She was careful not to share her decision with the judge or his wife. A few 

weeks before the election she hired a local agent and told him “to put a face to the name 

and tell folks about [the judge]’s background and experience.” The agent registered an 

independent expenditure group called “Friends of [the Judge],” and his team produced 

mailers, billboards, social media advertisements, and a website for the campaign. The 

friend was the sole financial contributor, and the agent exercised nearly completecontrol 

over the campaign’s messaging. 

The judge was kept ignorant of the independent campaign, and the judge 

had no control over the campaign’s activities. The friend stated that she “did not tell [the 

This court has ordered thatthis matter be treated as confidential. Therefore, 

the judge is referred to throughout this opinion as “the judge.” 

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judge or his wife] of [her] plans, did not involve them in any way in any of the campaign 

activities, did not solicit or seek their input, and did not request their review or approval 

of the plans or any materials.” Likewise, the agent said the judge had “no awareness or 

influence . . . . He didn’t approve anything that we put out there.” The agent did arrange 

to meet the judge in person and “snap[] a couple photographs” for the campaign, but the 

judge “seemed a little confused as to who [he] was.” The agent told the judge only that 

he was “a fan of [the judge] and [they had] mutual friends.” 

Although the judge was aware that he had supporters, he was not aware that 

there was a campaign. The judge avoided campaigning himself but understood from his 

counsel that allowing an anonymous supporter to take his photograph would not be 

improper. He rejected all other requests, telling supporters who wanted to help that he 

was not involved in any campaigns. 

Shortly after the election, the Commission initiated a complaint against the 

judge, alleging material misrepresentations in the items circulated by the campaign. The 

Commission later clarified that it was investigating the judge’s duty to correct the 

independent campaign’s alleged misrepresentations. The Commission focused its 

attention on three specific campaign items: a mailer, the website, and a social media 

advertisement. 

The mailer and the website prominently featured two quotes regarding the 

judge which arose from the judge’s previous disciplinary action. Both quotes appeared 

in the public record and were chosen by the agent’s team. The first quote was attributed 

to another judge: “An excellent knowledge of the law . . . Real skill at legal analysis 

[sic].”2 The second quote was attributed to the Commission itself: “An excellent 

2 Judges cannot publicly endorse candidates for public office. Alaska Code
 

Jud. Conduct Canon 5A(1)(b). The agent’s team did not contact the other judge directly;
 

(continued...)
 

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character and reputation.” Both the mailer and the website stated that they were “Paid 

for by Friends of [the Judge]” and that the communications were “not authorized, paid 

for or approved by the candidate.”3 

The social media advertisement featured an image of the judge tied to a 

stake and surrounded by flames with the caption: “Witch Hunts are so 18th century.” 

The agent’s team had digitally altered the judge’s facial expression, added the stake and 

flames, and come up with the concept and text. The “witch hunt” image was used only 

online. 

The judge did not personally receive the mailer; he first learned about it 

four days before the election. He learned about the website two days before the election. 

The judge did not learn about the social media advertisement until well after the election. 

After an informal investigation the Commission found that the two quotes 

falsely implied endorsements from the other judge and the Commission, that the 

advertisement falsely implied that the recommendation of non-retention was a “witch 

hunt,” that the judge knew or had reason to know of the campaign’s existence due to the 

photography session, that the judge had actual knowledge of the mailer before Election 

Day, and that the judge took no action to correct the campaign’s misrepresentations 

despite this knowledge. Pursuant to AS 22.30.011(b), the Commission imposed an 

informal private admonishment on the judge after concluding that the judge’s failure to 

publicly address the two quotes and the social media advertisement violated the Alaska 

2 (...continued) 

they found the quote in an online publication. 

3 Under AS 15.13.135 an independent group must place this disclaimer on 

published campaign materials “so that it is readily and easily discernible.” 

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Code of Judicial Conduct.4 The Commission also asked the judge to “correct the public 

record in some manner to address the concerns raised.” 

The Commission denied the judge’s motion for reconsideration. We 

granted the judge’s original application for relief5 and now reverse the Commission’s 

admonishment. 

III. PRELIMINARY DISCUSSION 

A. Application For Relief 

As a preliminary matter the Commission argues that we should not exercise 

our power of review over its informal private admonishments. The Commission makes 

three arguments: (1) the statute governing the Commission’s disciplinary authority does 

notcontemplateour reviewofinformaladmonishments; (2)informal admonishments are 

an important tool that will be compromised if they are subject to our review; and (3) an 

informal admonishment is not a sanction and therefore not a formal action to be 

reviewed. We are not persuaded. 

While it is true that AS 22.30.011 does not provide for supreme court 

review of the Commission’s informal decisions,6 this is not the first time that a pre4 Specifically, the Commission found that the judge had violated Canons 1, 

2A, 5A(3)(a), and 5A(3)(d)(iii). 

5 See Alaska R. App. P. 404(a)(1). 

6 The Commission addresses judicial complaints through an informal 

investigation followed by an optional formal hearing. AS 22.30.011. If the Commission 

does not proceed to a formal hearing, it can “exonerate the judge, informally and 

privately admonish the judge, or recommend counseling.” AS 22.30.011(b). An 

informal private admonishment “becomes a final disposition 16 days after service on the 

judge” absent a request for reconsideration. Alaska Jud. Conduct Comm’n R. 11(b)(2). 

While a formal hearing can lead to a disciplinary recommendation referred to this court, 

we have no express statutory role in disciplinary decisions that do not reach this stage. 

(continued...) 

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recommendation decision has been reviewed by this court.7 We have also previously 

determined that our review was appropriate under similar circumstances in the attorney 

discipline context. In Anderson v. Alaska Bar Ass’n a complainant asked us to review 

the Bar Association’s decision not to open an investigation into his grievance alleging 

attorney misconduct.8 The Bar Rules did not provide for supreme court review of these 

grievance-closing decisions, but we nonetheless concluded that such decisions “may, 

upon timely request of a complainant, be reviewed by this court.”9 We explained that 

our conclusion was “based . . . on the presumption of reviewability pertaining to all final 

administrative orders, and the inherent authority of this court to regulate the practice of 

law.”10 

We apply similar reasoning here. The Commission’s admonishment is a 

final disposition and thus presumed reviewable, and article IV, section 10 of the Alaska 

Constitution vests in this court “the ultimate authority in disciplinary matters affecting 

6 (...continued) 

See AS 22.30.011(b), (d). 

7 In a prior disciplinary case this court reviewed and upheld the 

Commission’s decision not to grant a motion to dismiss at the formal hearing stage 

before addressing the Commission’s substantive disciplinary recommendation. In re a 

Judge (Judge II), 822 P.2d 1333, 1337, 1339 (Alaska 1991). 

8 Anderson v. Alaska Bar Ass’n, 91 P.3d 271, 271-72 (Alaska 2004) (per 

curiam). 

9 Id. at 272. 

10 Id.; see also McGee v. Alaska Bar Ass’n, 353 P.3d 350, 351 (Alaska 2015). 

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the judiciary.”11 We conclude that we may, upon timely request, review the 

Commission’s imposition of an informal private admonishment. 

As with all original applications for relief, a grant of this review is “not a 

matter of right but of sound discretion sparingly exercised.”12 We appreciate the 

importance of informal disciplinary tools and the Commission’s expertise in handling 

these matters. Nonetheless, an informal private admonishment can become an 

aggravating factor in a future disciplinary matter,13 and Appellate Rule 404 is the only 

avenue of relief for a judge who wishes to challenge such an admonishment.14 And the 

mere possibility of discretionary review should not impede the Commission’s ability to 

conduct informal investigations or affect the Commission’s procedures. 

Review may be particularly warranted where, as here, the disciplinary 

decision implicates an unsettled issue of Alaska law affecting judicial conduct. The 

judge raises a purely legal issue; he challenges the Commission’s conclusion that he had 

a duty to publicly address the statements of an independent campaign. As the ultimate 

11 In re Hanson, 532 P.2d 303, 307 (Alaska 1975). See also Alaska Const. 

art. IV, § 10 (stating that a judge “may be suspended, removed from office, retired, or 

censured by the supreme court upon the recommendation of the [C]ommission” 

(emphasis added)); Judge II, 822 P.2d at 1339; In re a Judge (Judge I), 788 P.2d 716, 

722 (Alaska 1990). 

12 Alaska R. App. P. 404(a)(1). 

13 See In re Dooley, 376 P.3d 1249, 1250-51 (Alaska 2016) (listing 

“aggravating or mitigating circumstances” as a factor when determining judicial 

sanctions); In re Estelle, 336 P.3d 692, 693, 697 (Alaska 2014) (adopting Commission’s 

disciplinary findings which included a decade-old informal private admonishment as an 

aggravating circumstance). 

14 AS 22.30.011 makes no provision for direct appeal, which makes Alaska 

R. App. P. 404 the sole recourse for supreme court review. 

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authority on matters of judicial discipline, we may “sparingly exercise[]” our discretion 

to review and resolve these issues. 

B. Standard Of Review 

“In judicial disciplinary proceedings, we conduct a de novo review of both 

the alleged judicial misconduct and the recommended sanction.”15 Although this matter 

did not arise through the typical disciplinary process, we will apply those standards here. 

IV. DISCUSSION 

A. Alaska Code Of Judicial Conduct 

The fundamental issue in this case is whether a judge has a duty to publicly 

correct or repudiate the statements of independent supporters during an election. 

The Alaska Code of Judicial Conduct contains no such express duty. The 

Code provides broad guidance: A judge shall “uphold the integrity and independence 

of the judiciary”16 and “avoid impropriety and the appearance of impropriety in all the 

judge’s activities.”17 In political activities a judicial candidate “shall maintain the dignity 

appropriate to judicial office and act in a manner consistent with the integrity and 

15 In re Cummings, 211 P.3d 1136, 1138 (Alaska 2009). See also Judge II, 

822 P.2d 1333, 1339 (Alaska 1991) (reviewing de novo “the Commission’s 

determination that petitioner created an appearance of impropriety in violation of the 

Code of Judicial Conduct”). The Commission asks us to review this matter under the 

deferential standards of an administrative appeal. Because informal private 

admonishments are a form of judicial discipline, de novo review is consistent with prior 

case law. 

16 Alaska Code Jud. Conduct Canon 1. 

17 Alaska Code Jud. Conduct Canon 2. 

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independence of the judiciary.”18 He or she “shall not . . . knowingly misrepresent any 

fact concerning the candidate or an opposing candidate for judicial office.”19 

Although Canon 5 of the Alaska Code of Judicial Conduct, the canon 

governing political activities, primarily focuses on a judge’s or candidate’s own 

behavior, several provisions address the judge’s or candidate’s duties with respect to 

agents and family members. In this context a candidate’s duty is strongest when the 

candidate has the most control: A judicial candidate “shall not authorize or permit any 

person to take actions forbidden to the candidate”;20 “shall prohibit employees . . . who 

serve at the pleasure of the candidate” from violating rules on the candidate’s behalf and 

“shall discourage all other employees . . . subject to the candidate’s direction and 

control” fromcommitting the same violations;21 and “shall encourage [family members] 

to adhere to the same standards that apply to the candidate.”22 

Consistent with this idea, Canon 5 places no express duty on a judge or 

candidate to address false or misleading election statements outside of his or her control. 

The Code permits rather than requires a judge to correct falsehoods about a judicial 

candidate: “[W]hen false information concerning a judicial candidate is made public, a 

judge or candidate having knowledge of contrary facts may make the facts public.”23 The 

comments to Canon 5 provide one other reference to possible false and misleading 

18 Alaska Code Jud. Conduct Canon 5A(3)(a). 

19 Alaska Code Jud. Conduct Canon 5A(3)(d)(iii). 

20 Alaska Code Jud. Conduct Canon 5A(3)(c) (emphasis added). 

21 Alaska Code Jud. Conduct Canon 5A(3)(b) (emphasis added). 

22 Alaska Code Jud. Conduct Canon 5A(3)(a) (emphasis added). 

23 Alaska Code Jud. Conduct Canon 5A(1)(b) (emphasis added). 

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election statements, in the specialized situation where a candidate seeking judicial 

appointment has attorney supporters: 

[A] judge need not object when individual lawyers or groups 

of lawyers decide to circulate a letter in support of [his or her] 

candidacy. However, these letters must not contain 

[forbidden] promises or statements . . . , must not contain 

false statements, and, in general, must not violate any other 

provision of the Code.[24] 

Given that the Code contemplates attorney discipline for candidates who do not become 

judges,25 this example is best viewed as a special case addressing conduct by members 

of the legal profession. Thus, its applicability to the conduct of organizers of an 

independent judicial campaign appears to be limited. 

The judge argues that nothing in the canons requires him to “correct or 

repudiate” false representations made by people not under his control. The judge refers 

to the Alaska Code of Judicial Conduct, noting that the Code imposes lesser duties when 

an actor is outside the judge’s control and that the word “may” in Canon 5 is clear in 

permitting rather than requiring a judge to correct false information. He argues that by 

definition, a judicial candidate cannot have control over an independent expenditure 

campaign. The judge also observes that, as a practical matter, it is unclear how a judicial 

candidate should “publicly address” the statements and conduct of an independent 

campaign, especially given the media’s focus on several hotly contested races during this 

particular election cycle. 

The Commission argues that the Code implies a duty “to publicly address 

statements by a third party retention election campaign that the public would reasonably 

associate with the judge and give rise to an appearance of impropriety.” This test 

24 Alaska Code Jud. Conduct Canon 5B(2) cmt. 

25 See Alaska Code Jud. Conduct Canon 5E. 

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suggests a two-step analysis: first, whether the judge would be reasonably associated 

with the campaign; second, whether the statements and the association would give rise 

to an appearance of impropriety. The Commission argues that “deliberate ignorance of 

campaign activities made in the judge’s name should not be condoned.” 

We agree with the judge’s argument that a judicial candidate’s awareness 

of an independent campaign is not, by itself, enough to impose a duty to monitor and 

address the campaign’s statements. Such a duty might force the candidate to wade into 

the fray, creating tension with the candidate’s obligation to “maintain the dignity 

appropriate to judicial office.”26 Such a duty might also chill others’ protected speech 

in violation of the U.S. and Alaska Constitutions.27 

But we do not suggest that a judicial candidate’s failure to address a known 

third party misrepresentation would never violate a canon. There may be situations 

where a candidate must address an independent statement in order to uphold judicial 

integrity and independence, avoid impropriety, or maintain dignity.28 

Thus, inadditionto determiningwhether the judicial candidate has violated 

another canon outright, we will refer to our objective test under Canon 2 when 

determining whether a judicial candidate’s failure to address a false or misleading 

statement by an independent supporter creates an appearance of impropriety. Under this 

26 Alaska Code Jud. Conduct Canon 5A(3)(a). 

27 U.S. Const. amend. I; Alaska Const. art. I, § 5. See also False or 

Misleading Campaign Statements, 38 JUDICIAL CONDUCT REPORTER, no. 2, 2016, at 1 

(collecting cases addressing the First Amendment implications of prohibitions on false 

or misleading statements in judicial elections). 

28 For instance, the Indiana Supreme Court disciplined a candidate because, 

inter alia, she did not seek correction of a newspaper article for which she had been 

interviewed that attributed a falsehood about her opponent to her. In re Davis, 

No. 24S00-1210-JD-610 (Ind. May 7, 2013). 

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test we evaluate “whether the judge failed ‘to use reasonable care to prevent objectively 

reasonable persons from believing an impropriety was afoot.’ ”29 This duty is “one of 

taking ‘reasonable precautions’ to avoid having ‘a negative effect on the confidence of 

the thinking public in the administration of justice.’ ”30 

B. Mailer And Website 

The independent campaign producedamailer andawebsite containing two 

prominent quotes. The Commission found that the quotes gave the false impression that 

another judge and the Commission endorsed the judge’s retention. Both the mailer and 

the website stated that they were “Paid for by Friends of [the Judge]” and that the 

communications were “not authorized, paid for or approved by the candidate.” As 

required by law, the disclaimer was placed so as to be “readily and easily discernible.”31 

We conclude that the judge had no duty to publicly address the quotes or 

these materials. We reject the Commission’s conclusion that the judge knowingly 

misrepresented facts in violation of Canon 5A(3)(d)(iii); the record contains no evidence 

suggesting that the judge had knowledge of the mailers before they were distributed, let 

alone involvement or control in the selection of the quotes. We see no appearance of 

impropriety in violation of Canon 2; because the campaign materials are clearly 

attributed to the “Friends of [the Judge]” group and clearly disclaim the judge’s 

involvement, a reasonable person would not believe that the judge had produced the 

materials or was linked to the campaign. And because the materials were produced by 

29 In re Johnstone, 2 P.3d 1226, 1235 (Alaska 2000) (quoting Judge II, 822 

P.2d 1333, 1340 (Alaska 1991)). 

30 Judge I, 788 P.2d 716, 723 (Alaska 1990) (quoting In re Bonin, 378 N.E.2d 

669, 682-83 (Mass. 1978)). 

31 AS 15.13.135. 

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an independent expenditure group, the judge would have had no ability to stop the group 

from publishing the materials even if he had been aware of their contents. The judge 

should not be disciplined for his failure to publicly address election materials that were 

clearly attributed to an independent group. 

C. Social Media Advertisement 

The independent campaign also produced a social media advertisement 

featuring an image of the judge tied to a stake with the caption, “Witch Hunts are so 18th 

century.” The Commission stated that the image was “inappropriate to the dignity 

appropriate to judicial office.” The judge agrees that the image was “clearly 

inappropriate” and that the independent group should not have used the image. 

However, the judge maintains that he did not see the image until well after the election. 

We conclude that the judge had no duty to publicly address the image. 

There is nothing in the record to contradict his claim that he had no knowledge of the 

advertisement until well after the election; therefore he could not have knowingly 

misrepresented facts in violation of Canon 5A(3)(d)(iii). We also see no appearance of 

impropriety; a reasonable person viewing the ad would not believe that the judge had 

authorized the image or was involved in its production merely because he was the 

image’s subject. And because the judge did not learn about the image until months after 

the election, he could not have taken any steps to avoid such an appearance and 

accordingly could not have violated Canon 2. The judge’s consent to be photographed 

did not give rise to a duty to seek out and monitor an independent campaign he could not 

legally control, let alone a duty to stop any independent group from publishing any 

image. The judge should not be admonished for his failure to publicly address a social 

media image which he had no duty to address and which he did not even know about 

until months after the election. 

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V. CONCLUSION 

Forthereasonsexplainedabove, weREVERSEtheCommission’s informal 

private admonishment and DISMISS the Commission’s complaint against the judge. 

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